Autonomy Committee Recommendations

15th April 1999New Agencies

`Centre shall have control only on Defence, Foreign and Communication'
Autonomy Committee recommends restoration
of pre-52 situation
Article 370 be made a special provision instead of temporary
Revival of nomenclature for head of State, executive suggested.

JAMMU: The State Autonomy Committee has unanimously
recommended the restoration of 1952 Delhi Agreement in Jammu and
Kashmir under which the Centre would have no control over the State
excepting three subjects of Defence, External Affairs and
Communications. The Committee has also suggested that Article 370,
which grants special status to the State, be made a "special
provision"
instead of "temporary provision" which exists in the Constitution at
present.

The Committee, whose report was tabled in the Legislative Assembly
on April 13 and circulated to legislators and media men today, has
also
recommended changes in the Constitution for changing the
nomenclature of the Head of the State and State Executive, mode of
appointment of Head of the State and other consequential
amendments, superintendence, direction and control of elections to
the
State legislature and State High Court. It called for deletion of
almost
all laws made applicable to the State after 1953 including Article
356 of
the Constitution, which empowers Centre to dismiss a State
Government.

The Autonomy Committee, which was rendered an "all National
Conference
affair" following the resignation of former Union Minister Dr Karan
Singh as its
Chairman, is unanimous in its recommendations. The report has been
signed
by all nine members including Ghulam Mohi-ud-Din Shah, Chairman (who
had
replaced Dr Karan Singh after his resignation), Mr Abdul Ahad Vakil,
Speaker
of the Assembly, Mr Abdul Rahim Rather, Mr P L Handoo, Mr Bodh Raj
Bali
and Moulvi Iftikhar Hussain Ansari, all Cabinet Ministers in the
Farooq
Government, Mr Kushok Thiksay, Mirza Abdul Rashid and Sardar Teja
Singh,
member-convener.

The Committee has recommended that matters in the Union list not
connected
with the three subjects of Defence, External Affairs and
Communications and/
or Ancillary thereto but made applicable should be excluded from
their
application to the State. All modifications ,made in Article 246 in
its
application to the State subsequent to 1950 order should be
rescinded, it said.

According to the Committee report Article 248, 249, 250 and 251
whether
applied in original or substituted/modified form should be omitted
from their
application to the State, Article 254 should be restored to the
position it had in
its application to the State in 1954 and Article 262 and 263, which
were not
applicable under 1950 Order but were subsequently extended to the
State,
should cease to apply. As in 1950 and 1954, List II (State) and List III
(Concurrent) of the Seventh Schedule shouldn't be applicable to the
State.

Favouring conversion of "temporary provision" of Article 370, applied
to J&K, as
"special provision", the report said the word `temporary' be deleted
from the
title of part XXI of the Constitution of India and the word
`temporary' occurring in
the heading of Article 370 be substituted by the word `special'.

Elaborating on Article 370, the report said the word `temporary' has
been
issued in the title of Part XXI and heading of Article 370 of the
Constitution of
India. This was because of the provision contained in Clause (3) of
this Article
which came into being at a time when the Constituent Assembly of the
State
was yet to be convened. This Article could cease to be operative if
the
President of the Republic were to issue a notification to this effect
on the basis
of a recommendation of the State Constituent Assembly.

"So it should have been indicated as early as 1956 that it would be a
misnomer to call Article 370 a `temporary provision'. In fact it had
then become
and had to continue as a special provision of the Indian Constitution
applicable
to J&K.

The Committee said all amendments in the Constitution of Jammu and
Kashmir made vide Constitution of Jammu and Kashmir (First
Amendment) Act, 1959 in so far as they relate to superintendence,
directions and control of elections to State Legislature and to the
State
High Court and Constitution of J&K (Sixth Amendment) Act, 1965
relating to change of nomenclature of the Head of the State and State
Executive, mode of appointment of the Head of the State and other
consequential amendments should be repealed and the original
provisions of Constitution of J&K be restored. It may be recalled
that
prior to 1952, the Chief Minister of J&K was designated as `Prime
Minister' and Governor as `Sadar-e-Riyasat'.

"The provisions of the Constitution of India specified in Second
Schedule and
the matters specified in the first Schedule to the Constitution
(Application to
J&K) Order, 1950 and the matters agreed to by the representatives of
the
State and the Union vide Delhi Agreement of 1952 should continue to
apply to
the State subject to the same exceptions and modifications as are
specified in
the said Order and the Delhi Agreement", the reports said.

It said :"all orders issued thereafter under Clause (1) of Article
370 of the
Constitution of India by the President, applying various provisions
and matters
of the Constitution of India to the State, whether in full or in
modified form or
making any change in the provisions or matters already applied by
1950 Order
or agreed to under Delhi Agreement, should be rescinded and the
provisions or
matters so applied to the State should cease to apply".

Also, it said, the changes made in the State Constitution vide
Constitution of
J&K (First Amendment) Act, 1959 and Constitution of J&K (Sixth
Amendment)
Act, 1965 be repealed and the original provisions of the Constitution
of J&K as
adopted by the State Constituent Assembly on November 17, 1956 be
restored.

The Committee recommended that Article 356, under which the Centre
could
dismiss the State Government, should be made non-applicable to the
State as
was the position in 1954. Besides Article 356, it also recommended
that
Article 355, 357, 358, 359 and 360 should also be made non-applicable
to the
State. It said Part III of Fundamental Rights should be deleted and a
separate
chapter on Fundamental Rights be included in the State Constitution.

Referring to extended jurisdiction of the Supreme Court over matters
in regard
to J&K, the Autonomy Committee observed :"normally, there can be no
dispute now with the extended jurisdiction of Supreme Court over
matters
regarding to J&K, but it had got to be recorded that this aspect of
State-Union
relationship was not settled at the time of Delhi Agreement of 1952
and after
the events of 1953 quick decisions were forced upon the flawed
Constituent
Assembly followed by a number of Constitution (Application to J&K)
orders".

"The position which ultimately has emerged is that J&K has been
accorded
the same status as the rest of the States except for the above form
of Article
133 and 134 applied to the State. The State had at that time a High
Court
whose judgements were subject to appeal/review before His Highness,
advised
in his judicial functions by a Board of Judicial Advisors consisting
of eminent
jurists/knowledgeable persons. That has not to be and re-opening that
chapter
may not sound appropriate now except, of course, where adopting of
provisions of the Union judiciary for the State have in a way
infringed upon the
corresponding provisions of the State Constitution in regard to State
High
Court", it said and recommended that Article 72 (1) (c), 72 (3), 133,
134, 135,
136, 138, 145 (1) (c) and 151 (2) should be made non-applicable to
the State
as was the position in 1950 Order.

Besides, Article 149, 150 and 151 should apply to the State in the
form in
which they were in 1954. Article 218 be omitted in its application to
the State
and the position as it existed before the J&K Constitution (First
Amendment
Act) of 1959 restored. Article 220, 222 and 226 should also be
omitted in their
application to Jammu and Kashmir.

Regarding finance, property, contracts and Suits, the report said the
matter be discussed between the State representatives and the Union
Government as agreed to during the talks in 1952 Delhi Agreement.

On Services under Union and the States, it said in Article 312 the
words
"including State of Jammu and Kashmir" inserted by the Constitution
(Application to J&K) Order 1958 be omitted.

Elaborating on the aspect of services, the report said
"notwithstanding
seemingly an attractive proposition one can say without any fear of
contradiction that it has dwarfed local talent and made it difficult
for
local youth to aspire to compete for key civil posts on competitive
basis. The weak-kneed attempt to organise Kashmir

Civil Services is neither here nor there and increasing inflow of All
India Services has meant pretty little in the field for which the
services
were apparently conceived.

"Ever since the application of these provisions of the Indian
Constitution to our
State, the number of direct recruits from the State has been
negligible. The
problem has attained so unpleasant a shape even in the national
context that
demands of greater number of promotees from local services all over
the
country have assumed alarming proportions", it said.

The Committee said the Indian Constitution has restricted the power
of the
State legislature to amend its own Constitution. This uncalled for
clog on the
constituent powers of State legislature needs to be removed lock,
stock and
barrel. As such, it recommended that Clause (4) of Article 368 added
vide C.O.
101 be deleted, Clause (2) of Article 368 should apply with the
proviso already
introduced by 1954 Order and Clause (i) thereof which was not in
existence in
1954 and was introduced in 1971 should remain omitted in its
application to
the State.

The Committee recommended that entries in the Union list, which were
applied
to the State by 1950 Application Order should continue and all other
entries
made applicable to the State by subsequent orders should be omitted.
The
concurrent list was not applicable under 1950 Order and it was also
agreed in
the Delhi Agreement that this should not apply to the State. hence
all
subsequent orders applying various entries from this list should be
rescinded.

It recommended that consistent with the requisite changes as many
become
necessary consequent upon change in the Article of the Constitution
of India in
their application to J&K as a result of this report be effected in
the Schedules
concerned.

It also suggested that application of Article 338, 339, 340, 341 and
342 to the
State should be omitted and the corresponding provisions made in the
State
Constitution.

Regarding Amendment of the Constitution of India, the report said
Clause (4) of
Article 368 added vide C.O. 101 be deleted and Clause (2) of the
Article should
apply with the proviso already introduced by 1954 order and Clause
(i) thereof
which was not in existence in 1954 and was introduced in 1971 should
remain
omitted in its application to the State. In the Seventh Schedule
entries in the
Union List not applied to the State by the Constitution (Application
to J&K)
Order, 1950 should be omitted. Concurrent List, which was not
applicable to
the state in 1950 but was applied by subsequent order, should cease
to apply
to the State.

Referring to elections, the report said, since elections to the State
legislature
are held under laws made by the State Legislature, Article 324 should
continue to apply in the manner and the way it was applicable in
1950/1954
order. This is particularly so when the State Constitution had
provisions
relating thereto. The change brought about in this Part after 1954 be
reversed
and consequential changes in other Article in this Part be effected,
it
recommended.